Litigation: Jackson v Murray & Another - "THE SAGA CONTINUES"

(CHILD STRUCK BY VEHICLE WHEN CROSSING ROAD - NEXT STEP SUPREME COURT)

At Drummond Miller, our litigation team work very hard to settle as many claims as possible but at the same time, maximising the level of compensation for our clients. When injured due to the fault of another, it is only fair that the injured person is put back into the position, as far as possible, that they were in prior to the accident.

A recent example of the determination of Drummond Miller's litigation department and refusal to give up when the outcome is considered to be unfair (ie the injured person is not fairly compensated) is the case of LJ v AM & Another. In this particular case, the issue of fault was first determined by a single judge, then three judges on appeal and is now being appealed to the Supreme Court in London.

The pursuer suffered serious injuries following a road traffic accident which occurred back in January 2004 when the pursuer was only thirteen years of age (something we feel is important to bear in mind when considering fault). Drummond Miller started acting for the pursuer in mid-2009 shortly before the claim was due to timebar later that year (on the pursuer's 19^th birthday). Unfortunately, progress of the claim up until that point had been very slow, due to no fault of the pursuer, but an action was promptly raised seeking compensation for the injuries suffered as a result of the accident.

The pursuer had alighted from a school minibus and was crossing the road (with a 60mph speed limit) behind the bus. She was struck by a car driven in the opposite direction travelling at 50mph (according to the findings of the judge). The original hearing focused on whether the driver was to blame and if so to what extent. 

The main argument put forward on behalf of the pursuer was that the driver failed to reduce his speed when approaching the minibus - which had stopped to drop off the pursuer and had its hazard lights on.   The argument was that the bus was a clear hazard which any reasonable driver should have appreciated and therefore reduced his or her speed. The driver accepted when giving evidence that he was travelling at approximately 50mph and that he did not slow down prior to the point of impact with the pursuer.

The Judge ultimately held that the driver was at fault (in breach of his duty to drive with reasonable care). However, he found the pursuer 90% to blame and deducted a staggering 90% of the damages to be paid to her.

The clear advice from the pursuer's legal team was for her to appeal this surprising decision (when compared to previous awards and findings of contributory fault for someone of that age).

The case then called before three Judges on appeal and the court was asked to find that the accident was caused by the sole fault of the driver, failing which to reduce the level of contributory negligence. Thankfully, the advice proved to be correct and the appeal court agreed that the award of 90% contributory fault was too high for reasons such as: (a) insufficient regard was had to the circumstances of the pursuer - she was only thirteen at the time of the accident/ the conditions of the road; (b) greater stress should have been placed on the actings on the defender; (c) the description of the pursuer's conduct was not justified on the facts found by the Judge; and (d) the "causative potency" of the parties' actings must be taken into account.

Great weight was placed by the pursuer's legal team during the appeal on the final point - "causative potency".  It was pointed out that in previous cases the court had made reference to the fact that a car is a "potentially dangerous weapon" and, therefore, the driver should share the greater extent of the blame when striking a pedestrian - particularly bearing in mind the age of the pursuer. The Inner House appeal bench agreed and reduced the finding of contributory fault but only from 90% to 70%.

Whilst a step in the right direction, advice has now been given that this remains too high and that the award should not be reduced to such an extent (if at all). The arguments before the Supreme Court are likely to be very similar to those before the Inner House but, as a matter of principle, it would seem unfair for a pursuer south of the border to be in a better position than someone living in Scotland (which is arguably the position as matters stand).

For example, see the case of Probert v Moore in England (where the pursuer was also 13 years of age). Accepting that the circumstances were different and that the facts of each case are relevant when assessing fault, this case has been used by some to compare how a court in England assesses the blameworthiness of parties (in particular in relation to children) compared to that in Scotland.

In the case of Probert, the court made no reduction at all stating that, whilst ill-advised for the girl to walk along the road at night without wearing high visibility clothing, a child should not be expected to consider taking the same level of precautions as an adult. This appears to be a very different approach to assessing contributory negligence than applied in the case of LJ. Is it fair for a child struck by a vehicle in Scotland to lose more of his/her compensation than in England? The counter-argument is that such cases are very fact specific but it is difficult to reconcile the two approaches in terms of contributory fault and this is one of the reasons why the pursuer's legal team wish to challenge the decision further.

The final hearing should take place later this year but, until that time, it remains to be seen whether the Supreme Court will find that both the first judge and the three judges on appeal have all made an error in finding that the pursuer's contribution to the accident was too high.

If you have been involved in a road traffic accident and wish to speak to one of the members of our litigation team, please feel free to contact Darren Deery on 0131 226 5151 or any member of our litigation department.